Introduction
3.1
A central part of this committee's work has been hearing from individuals with first-hand experience of the family law system in Australia. At the heart of this inquiry are the men, women, children and their extended family who engage with different parts of this system on a daily basis.
3.2
The committee received over 1500 submissions from individuals with experience of the family law system to 17 September 2020 and held thirteen in camera hearings receiving evidence from 85 individuals. These written submissions and subsequent oral evidence have provided the committee with an important insight into the impacts that the family law system has on the lives of Australian families. These individual accounts have illustrated the failings of the system, highlighted the long lasting injustices that some participants feel and painted a very personal picture of the systemic issues that the committee considered. This evidence has also informed much of the committee's work and understanding of how Australia's family law system currently operates in practice and been a source of possible areas for improvement and reform.
3.3
The quotes in this chapter are a representative view of the issues repeatedly raised throughout submissions. On some issues, submissions spoke with one voice; on other matters, the committee heard differing and sometimes contradictory viewpoints.
3.4
The most common theme raised in submissions was the profound impact that family and relationship breakdown has had on the immediate and extended members of a family. Regrettably, many people have felt that their interactions with the family law system have exacerbated an already distressing event in their lives. This chapter highlights this issue and a number of other common themes explored in individual submissions including in relation to:
challenges in engaging with the legal system;
Impacts on people's lives
3.5
Many submissions and witnesses have commented on the immense personal trauma that a relationship and family breakdown can cause. These breakdowns inevitably lead to significant change to the lives of parents, children, grandparents and other extended family. Living arrangements can change including one or both parents having to move out of the family home, and children may spend less time with one or both parents. In addition, there may be financial implications and stresses as family assets—primarily the family home—are sold to enable separate residences to be established for the separated couple.
3.6
Common themes emerged with one submitter reporting about going into 'shock and severe depression', whilst another described himself as being made to 'feel worthless' as a consequence of his family breakdown. One submitter noted that 'dealing with courts causes great stress and anxiety and in many cases depression' adding that 'it is hard and family are unable to help and you are left to flounder on your own or find a support person or team'. One witness summarised his current situation:
I have got to the point where I am financially and emotionally stretched, to the degree that I have decided I will accept to make the best I can of the current situation that has developed, especially in regard to seeing my children, without spending any more time or money fighting the system, which I feel has beaten me.
3.7
Tragically, a number of submitters indicated that their family law matter had been so distressing that they had contemplated suicide. One submitter observed that 'we hear of so many suicides of men that relate back to a broken marriage and the loss of their children'. Another submitter highlighted that 'the high suicide rates of separated fathers indicates the deep pain felt by fathers that have their children taken away from them'.
3.8
Separation also marks the point of greatest risk for individuals who have been subject to family violence during the course of their relationship:
Although the signs of an abusive relationship were there earlier, they did not become apparent to me until I fell pregnant. We were living in a domestic violence situation and I was preparing to leave the relationship. After experiencing a violent outburst when I was trying to call the police, I was chased up the stairs by my ex-partner, tackled down on the ground, with my face pressed down onto the floor. My hands were twisted behind my back and there was a knee pinning my body to the ground. All this happened with my ex-partner holding our … baby in his arms.
That day I ran away from home. I had no family in Australia, or financial support, only a tiny baby in my arms. In the following months, the abuse escalated to threats to our safety and two promises, one to make me and my family suffer for the rest of our lives, and second, that my son would never be able to go and see our family …
3.9
The committee also heard that family violence and other controlling and abusive behaviours did not necessarily cease once a relationship ended. In some circumstances, the family law process extended this type of abusive behaviour:
… leaving a domestic violence relationship with a baby was highly distressing, but it was the experience in the family court system and the consequences of this experience which produced the most trauma for myself and my son, giving the abuser ammunition to use against us for the many long years that followed.
3.10
Extended members of the family are also affected by a loss of connection to children:
This had a very severe effect on my parents, who appeared to suffer greater distress than I did. They thought they would never see their grandchildren again, despite being totally devoted to them.
3.11
Another submitter also articulated the impact on extended family:
It has been 3 years since I have seen my children ...
And their sister (my stepdaughter, …) has not seen them in this time either, nor have their grandmother, uncles, aunties and cousins.
3.12
The remainder of this chapter focuses on the more specific impacts on individuals.
Challenges in engaging with the legal system
3.13
The committee received a significant body of evidence detailing a range of concerns with legal proceedings including in relation to the following matters:
mediation and dispute resolution.
Delays
3.14
A significant issue raised during this inquiry was the length of time a matter can take to resolve from start to finish.
3.15
A submitter described their son's experience with a court appearance stating that not enough time is initially allocated when a case is listed; that each additional day in court costs extra money, and that once the case is concluded, parties must then wait for a decision:
Our son’s Lawyers have said it can take up to three years for a decision to be made. I find this totally unacceptable. I do not understand why a quick decision is not made while everything is fresh in the mind of the Judge. We are living the nightmare and at times things become foggy to us.
3.16
One submitter succinctly put forward his assessment of the reasons for delays in the court:
… disputes are protracted by delays occasioned by resource constraints in the courts and also by the conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony.
3.17
This was supported, and added to, by others such as this submitter:
The incredible delays are exacerbated by a revolving door of magistrates and judges assigned to our case—
Court set deadlines for official documents/ affidavits and other requirements are not upheld or reinforced. All of these deadlines were in my case ignored, often for several months, with no consequences or repercussions.
3.18
The committee heard that these delays can have significant impacts on children and parents:
The court says it would like parties to negotiate but if they could negotiate, they wouldn't be there. They go back to court after failed negotiations. 'We need a report' so $5000 is spent on a report. 'I won't actually order the report's recommendations as we will see if the parties can sort it out'.
Several hearings later, all of which have been 'I don't have time to make an order, we will review it later'.
One year later, the report still hasn't been implemented and the court says 'This is a year old now and out of date, I can't do anything until I get a new report'.
By now the children have had almost 2 years of minimal parenting by the non-custodial parent and minimal exposure to their other set of grandparents ...
3.19
Delays during legal proceedings are discussed further in Chapter 6.
Perceived bias
3.20
The committee heard that there is a perception that the family law system is biased against men. One submitter described this perception in the following way:
It is accepted that 'both parents should have equal input to the upbringing of the children'…A decision was made unilaterally by the mother that my children…would stay with me for only the odd day in the first few months, eventually 3 days per fortnight, and then 2 years later 4 days per fortnight. I would be very surprised if a court took 2 years to decide on a resolution if this was the father so significantly restricting access of the mother. I would be very surprised if the court would then rule that the children's needs are best met by spending 10 days per fortnight away from their mother …
3.21
A different submitter made the following assertions:
The judge … accepted not only false information but hearsay as evidence and would not even consider my version of events. The family report writer was heavily biased towards my former partner and I was not allowed to question this. The [Independent Children's Lawyer] was not independent at all. There's no proof whatsoever that she took my situation into consideration and favoured [the] mother as the primary care giver and accepted lies told about me as fact.
3.22
Another submitter commented on his experience:
For some months I could not see my children without another adult …, the [court ordered] [counsellor] had a definite bias against me and at the conclusion of the months of meetings she said she had not believed me because I was [too] intense! She also advised that I could have requested another [counsellor]. I was never given that advice until the process concluded. Without doubt that [counsellor] caused more grief and distress simply because of the incompetence and arrogance of the [counsellor].
3.23
Some claimed that some court mediators were not always impartial:
I am lodging official complaints against the court mediators for their unprofessional, predetermined and incompetent conduct and failing the children's rights. Their methods were not of a mediating nature, and were not child focussed rather to incite conflict and raise accusations not relevant to the case or children then taunted the father.
3.24
Notwithstanding these claims, the committee heard from women who felt they had also been treated unfairly:
The family report was not based on evidence but heuristic biases. The information was cherry picked to suit a preconceived result. Important evidence was ignored and when presented with important information against the biased opinion, it was disregarded. In cross examination, when evidence was presented, instead of addressing it, repeated 'this mother is unfit'.
3.25
Another mother shared her reflections on the family law system:
The lawyers–the mediation. I understand that, with some judges, if they're biased against you, then you don't stand a chance in court. I understand that most do get child alienation, but in my circumstances I've done everything right and I still can't win. The system has let me down. It's the lawyers, child support, family law, the judges. We don't win.
Expert witnesses
3.26
A number of concerns were raised about the role that expert witnesses play in legal proceedings. Many of these complaints centred on independent children's lawyers (ICLs) and family consultants who are appointed to write family reports (family report writers).
3.27
Submitters alleged that there are some ICLs who do not comply with their responsibilities as outlined in the Family Law Act 1975 (Family Law Act).
We have numerous ICLs who are not following those orders. They're not interviewing the children. They're not seeking their wishes. In a case … an ICL recommended that the mother have unsupervised contact with the children after she had had two restraining orders against her. A previous judge of the family law court had put her under supervised contact, and that same judge stopped the contact six months later because the children were … being affected by the contact with their mother, because of her previous abuses. This ICL, with a new judge at a mention, sought to have unsupervised contact with the mother. At the very first unsupervised contact, at [a] contact centre, the mother bashed two of the children. So we have an ICL here who took no notice of the previous judge's order or the mother's previous abusive history and who allowed the children to be harmed, and she's still in business.
3.28
The submitter added that 'there's something wrong with the system when these professionals are not doing their job properly and the courts are not upholding the rights of the child'.
3.29
The committee heard the experience of another submitter with respect to an ICL and family report writer:
I spent over 3 years in the family law system … and in that time, my ex‑wife and the ICL both provided documents (subpoena documents from DV services and child safety) that had zero basis of any factual evidence, claims that were unproven and uninvestigated [sic] yet the ICL and the judge (and the so called 'independent' family report writer … ) were allowed to use this unproven 'evidence' as a basis for making claims and pushing for orders against myself, limiting my time with my children for over 3 years causing massive amounts of emotional distress, anxiety, depression and suicidal thoughts.
3.30
Others were even more scathing in their assessment:
I think ICLs are the biggest load of hogwash God ever gave breath to. We have had four different ICLs in our matter and not a single one of them has talked to any of my children, even my oldest son. None of them have taken the time or anything else. They have had numerous amounts of evidence put before them, and they don't care. They are extremely biased. They're of course government paid, because they're funded by legal aid. They are there simply to pretty much sit on their thumbs and become a biased party to the proceedings, because, after all, it's the ICLs who are picking who the child is to live with. We need to abolish them. They are absolutely the biggest hogwash.
3.31
Some submitters felt that family report writers do not currently spend sufficient time with families prior to making recommendations about past and future parenting arrangements:
Family Report Writers need more access to children. It is very difficult in a couple of hours to determine [whether] the child [is] being abused, alienated etc in my case this went on for 2 years and it was not necessary.
3.32
Some submitters argued that family report writers could sometimes reach contradictory positions in subsequent reports:
The same [family report writer] wrote another report, this time in support of me and recommending no contact with the father. Even though I was overjoyed in the recommendation, I now had two reports, written by the same [family report writer] with completely different recommendations. And this is where I can show that the [family report writer] Reports are complete garbage. In the First report, negative towards me, there was absolute rubbish written about me. In the Second report, negative towards the father, there was absolute rubbish written about him. These reports are useless and are based on who can present themselves 'nicer' to the [family report writer]. They are based on preconceived beliefs and should not be used at all.
3.33
Matters relating to family report writers, ICLs and other court experts are examined further in Chapter 4.
Legal costs
3.34
The committee received a substantial amount of evidence about the disproportionately high legal costs of parties to family matters. For instance, the committee were told that some people were spending up to $200 000 in legal fees. In one case, the committee heard of a separated couple spending nearly $900 000 in legal fees against an asset pool of $1 million. Whilst this is an extreme example, it was not uncommon for the committee to hear from submitters and witnesses about legal fees that consumed a significant proportion of matrimonial assets:
Our son owned his own home, he also owned a flat he had rented out, a large piece of land he planned to subdivide as well as a healthy bank account when he met his ex. With all the valuations, accountants, expert witnesses and legal costs he has incurred he has had to sell up everything …
3.35
One submitter pointed out the high fees that legal professionals charge relative to the modest incomes earned by their clients:
The majority of parties in family court proceedings are average income earners. Legal firms cannot justify the very high legal fees of greater than $350 per hour. Nor Barristers that charge >$2000 per day.
3.36
Another submitter described the regular court appearances and the mounting legal costs:
I have also had to take my ex back to court because he wouldn’t follow the orders, and sometimes I wouldn’t even get to see our son, he would just withheld [sic] him. He hasn't once complied with the orders and yet the system lets them get away with it. I have been to two mediation sessions which has cost me nearly $5,000 dollars, I’ve had to get a new lawyer and I'm still trying to pay her off plus the last court/lawyer fees from the last fight. So here I am again working for nothing, to pay lawyers and fight in court again just so my ex can adhere to the orders, and I can move on with my life. I have been to court 3 times so far …
3.37
The committee was told that the legal sector appeared to be primarily driven by financial motives:
In my opinion it is an industry driven by financial gain where common sense and fairness doesn't exist. The right of parents, generally fathers, to care equally for their children without having to incur exorbitant legal costs must be addressed.
3.38
Many other submissions echoed this view, for example:
The legal system has a vested interest (more fees) in prolonging cases, which only adds to the financial costs of both parents at a time when the finances are strained. It also adds to the tensions between the parties. Why is a barrister needed at $10,000 a day to resolve cases which are very common in nature? Not to mention the need to have an attendant solicitor at around $5,000 per day. And to make it worse the lawyers avoid any resolution until just before the court date which ensures full legal payment. And the result may be dependent on which judge is hearing the case! Then resolution is quick so that the lawyers get full payment with minimal effort! And some judges admonish a party because they were represented only by a solicitor. An average contested custody and financial settlement costs about $100,000 for each party.
3.39
The motivations of some ex-partners were also called into question:
Some parties just keep going (prolonging the process, lying etc) in order to cost the other party as much as possible—hoping they will give up as they cannot afford to continue, cannot deal with the lies (they are trying to maintain their reputation) and do not see their children.
3.40
The committee also heard that it is difficult for men to obtain access to legal aid support:
My ex-wife obtained legal aid support, and changed lawyers about 8 times during the period. I was unable to get any aid.
3.41
Another submitter put forward a similar view:
My son tried to access legal aid and was told the only company he could go to was about ¾ of an hour drive away from where he lived.
Perhaps more legal aid companies could be offered so it is easier for people to access.
3.42
Legal costs are discussed further in Chapter 5.
Mediation and dispute resolution
3.43
The committee heard that one reason that mediation fails is that one or both parties fail to engage with the mediation process in good faith:
Two attempts at mediation were made but our ex daughter-in-law and her legal team were not interested in trying to settle.
3.44
This view was supported by others who noted that outcomes from mediation were often not legally binding until they are filed with the court. This extra step in the process can cause conflict:
One party should not be able to refuse to attend mediation or if attends mediation and signs off on an agreement then refuses to sign the court copy …
3.45
One submitter described mediation as a box ticking exercise:
Mediation was a disaster because the mediator was totally inadequate and my partner was never going to be reasonable when your target is 70%. This was just a blatant waste of money and time when as my lawyer put it to me when it was over 'that we had just ticked a box'. In other words the system requires us to mediate and we had done so even if a complete waste of time and money for us but not of course for the lawyers.
3.46
Similarly, another submitter expressed frustration about the rules around mediation:
At present The Family Law Act allows mediation to be less than ten minutes. It should be redefined to be two half-day sessions.
3.47
Matters relating to mediation and arbitration are more fully explored in Chapter 12.
Parenting arrangements
3.48
The development of parenting orders were brought up by a number of submitters and witnesses who described these orders as being 'unjust towards me and my children'. Some argued 'that 50/50 time between mothers and fathers should be mandatory'.
3.49
Many submitters called for the parenting responsibilities of children to be shared equally between parents on separation unless there were extenuating circumstances such as child safety issues or family violence. One submitter summarised the views of many submitters and witnesses:
The default position should be that, in the absence of any reason otherwise, the 'shared care' of the children means equal time with the 2 parents from separation. It should not be possible for either parent to unilaterally restrict access of the other parent, without reason, and then require a 2 year court process to try to reverse that.
3.50
Another submitter elaborated on this and reasoned that:
It is not right that one parent can deny the rights of children to share equal time with their other parent, particularly when they are law abiding.
3.51
In addition, some submissions emphasised the rights of the child 'to be raised by a father and a mother (as recorded in the Convention of the Rights of the Child)'. Others wrote about the rights of parents having been 'permanently terminated' as a result of family court proceedings. However, some submitters felt that 'father's rights' were placed above those of the child, even in some circumstances where a father may not have had an active interest in a child's life prior to separation.
3.52
The committee heard from some that the family court did not put the 'best interests of the child' first despite this being the primary requirement that the court must take into consideration. One submitter told the committee that:
The system does not have the best interests of the child in mind. There was no supervised visits my children have lost half of their identity being alienated from their Father, Brother, Grandparents, Aunts, Uncles, and cousins …
3.53
Other submitters took a different view on the ability of both parents to adopt an equal primary caring role after separation:
On children I am opposed to equal time because I think it messes children up. And while there are many, many good men who can cope the overwhelming majority of males are hopeless at day to day parenting. My ex was insistent on it and it lasted 8 months. The idea sounds fair, but it is too hard in reality. The children suffer. Some children not, but that’s where the father is outstanding.
3.54
The committee also heard about the complex issues that are raised when one parent decides to move away from the town or location where the family lived prior to separation:
My … area of concern is when one parent moves away from the family town possibly with the children, and I feel that that area has to be considered very carefully. I think moving away from where the marital home was can be disruptive to the children because they may have to move schools or house. And it can be difficult for the parent who's left behind, who may have difficulty accessing the children. Obviously if parties are in agreement then there's no problem, but I feel that those types of decisions need to be made very carefully by the family law system-to allow one parent to move away possibly with the children.
3.55
Sometimes, children can be adversely affected by a decision of the court including that parenting orders 'are made which at times places the children in the care of an abusive parent that has access to inflict further abuse upon the child/ren'. One witness elaborated on this:
You can't put a young child with an ex-partner who's violent or who has no structure or routine. That poor child gets neglected and no one's there to put him in a safe environment, to protect the child.
3.56
Conversely, a 'child not seeing a parent [can also cause] trauma'.
Enforcement
3.57
The issue of a lack of compliance with the orders was also raised with the committee. One submitter advised that his ex-partner contravened parenting orders 95 times. Another submitter described their difficulties with non‑compliance:
It would seem pointless to have a court and a court order that then can be ignored with no consequences to the offending party. It appears that the woman can keep the children (for whatever reason she believes is good enough) on days that are [meant] to be the male's days—with no consequences. However, the male is informed that he cannot do the same without there being consequences to him. WHY? These parenting orders must be able to be enforced by both parties and there should be consequences for breaching them.
3.58
One witness described the impact of non-compliance with parental orders:
I think there need to be tougher penalties when parents don't follow parental orders. For myself, I had to stop fighting because I couldn't financially afford it. I don't qualify for legal aid. I had to return to my work, which enabled me to fight in court. But I've got other children to support; I can't keep fighting and paying court costs. So I just let him breach the orders, and I can't do anything about it.
3.59
Other submitters agreed, arguing that the current mechanisms of enforcement through a court were taking too long:
Police should have the power to act on parental orders when orders on contact with the erased parent are clearly breached. It should not have to go back through an ineffective court system to maybe sometimes act on visitation and contact breaches years later.
Alienation of parents
3.60
The committee understands that there is contention around 'parental alienation'. At this point the committee is not expressing a view on whether parental alienation is a recognisable disorder. However, it remains that many submitters wrote to the committee of their experience and that evidence is set out below.
3.61
One witness put forward his experience of parental alienation and its subsequent impact on parenting responsibility for his daughter:
I think it's fair that the family court considers the wishes of the child regarding whether the child wants to spend time with the parents or not. I think that's a fair idea. What I am concerned about is that the court does not currently do enough to seek to understand the reasons for a child's opinion. What if the child's opinion has been skewed, and what if parental alienation is present? I was in the process of going to court to get court ordered access to my youngest daughter and my family lawyer gave me advice, which was: 'This could take a year or 18 months. It could cost $50,000 to $100,000. And the court won't require your eldest daughter to spend time with you. And the court will ask your youngest one what she wants to do.' At that point, because I knew that she'd already been influenced … I dropped it. So I never went to court to pursue that.
3.62
One submitter suggested that 'if a parent is illegally preventing the kids from seeing the other parent (parental alienation) this should never be rewarded'. Another submitter expressed his concern that state-based child safety agencies 'do not recognise parental alienation as a form of emotional child abuse' and as such do not remove children from the care of parents in these circumstances. Some witnesses told the committee that there needed to be broader recognition of parental alienation, particularly in the courts.
3.63
There was a divergence of views on whether parental alienation occurs and this is examined further in Chapter 8. Rights of various parties particularly with regards to custodial issues and the 'best interests of the child' are also discussed further in Chapter 8. Enforcement of orders is explored further later in the chapter specifically in relation to family violence and related orders.
Child support
Paying too much
3.64
Child support is another area where there were a range of views put forward by submitters. The committee heard about cases where parents believed that they were paying too much child support:
My ex-partner is a builder, but because he's self-employed he's able to drop his income. I work, but it's fifty-fifty care, and I have paid him maintenance. I've fought child support that many times—I was paying over $1,500 a month, and they've just dropped it down $450. And then they told me that, in July, I'm going to have to fight it again.
3.65
Another submitter described how he manages to pay his child support obligations:
I've had to sell assets to assist with paying child support, my wage alone puts me in financial stress to pay Child Support alone.
3.66
Other individuals agreed, noting in particular when there were other bills to pay:
… it's causing me great financial and emotional stress and if I can't pay Child Support it will be deducted directly from my wages giving me no opportunity to meet other debts and obligations including feeding my son.
3.67
A grandparent commented on the child support arrangements for their grandchildren:
We recognise that our grandchildren need child support in monetary terms however our son who has since remarried appears to be penalised because he is on a higher income and when he received an increase in salary child support increases the amount above what he is currently paying.
3.68
Some submitters felt that a more specific breakdown of living costs should be incorporated into the child support calculation to more accurately reflect the contribution of each parent:
Child support needs to factor in so much more than where the kids sleep as the calculation for primary care. It needs to break down on a weekly basis per category (food, medical, education, activities, etc) and the hours spent in each category per parent. Allowing each parent to disclose a more accurate reflection of how care is shared. If a child goes to sleep with a parent this should not have a 100% bearing under the classification of 'care' for a child, but should only factor in the care if a child needs attention during that period (e.g. if a child has medical conditions).
3.69
Furthermore, many submitters also argued that some parents will try to increase their share of the children's parenting responsibilities in order to increase the amount of child support they are eligible to receive. The following scenario was asserted by many submitters:
… she has persuaded my children to not want to see me to increase her child support payments.
3.70
Some submitters put forward a view that the establishment of new relationships and families puts further strain on individuals as they meet their child support obligations to their ex-partner and children:
I have a new wife now and will be starting a new family; but the more that I work for my new family means that the ex-wife takes a larger gouge too.
3.71
There were also concerns that child support payments were not being used to support the child or children. One submitter put forward this view:
Too many parents, mostly women, are relying on child support to fund their lifestyle and not directing it towards the care of the child, all while draining their ex-partner’s funds and denying them the opportunity for any financial prosperity.
3.72
One submitter claimed that some 'mothers are claiming for multiple children from multiple fathers then living like queens with thousands of dollars a week and not having to work a day'.
Late or not enough
3.73
Conversely, the committee also heard about parents who did not pay an appropriate level of child support in a timely manner to their ex-partner. The committee heard the following story many times:
Child support is collected through [Services Australia], however payments are often delayed or the full payment is not paid. I cannot rely on this financial support to be paid on time. There is never any advice that payments will be deferred for whatever reason, so [I can't] plan to use this money for anything.
3.74
One submitter observed that they 'couldn't afford to live when child support [from their former partner] was late' because the 'family assistance' payment was lowered as a result of this late payment.
Administration
3.75
Many submitters also expressed concerns about the administration of child support, in particular, with Services Australia. The committee were told that:
… the child support agency acted as a very dysfunctional agency. It was very unhelpful and it really aggravated the emotional issues that parties have to deal with when going through child support and a divorce case. The child support agency is highly bureaucratic. It deals in a way that significantly makes things worse instead of helping parties to deal with child support.
3.76
Another submitter made the point that communication from the Services Australia could be improved:
At the moment from what I can see whoever can tell a good story gets the support of the child support system and again it is often the men that get bullied by staff. I have been in the same room as our son when he has rung to get information from the Child Support System. In a lot of cases he is told someone will call back. This often does not happen and sometimes I have heard women being quite aggressive for no reason.
3.77
There was a call for greater transparency, particularly where one partner may have an undeclared income such as a cash-in-hand job as this can increase the economic burden on the partner with a declared income source. The issue of child support will be examined further in Chapter 10.
Domestic violence
3.78
The committee received a substantial amount of evidence in relation to domestic and family violence. The majority of submitters and witnesses agreed that any form of violence against a family member is not acceptable. However, there were a wide variety of perspectives around how allegations of family violence are dealt with within the family law system.
The use of domestic violence and associated orders
3.79
The application and use of court orders, particularly in relation to domestic and family violence was a consistent theme raised by submitters and witnesses. Concerns were raised about the apparent ease with which domestic violence orders could be obtained and the consequential effects of such orders on family law proceedings. A number of submitters described their perception of a 'very unbalanced or biased legal system regarding domestic violence intervention orders' and a family court system that was 'extremely biased against men'. One submitter described a common complaint in relation to family violence orders (FVOs):
The process of obtaining a [FVO] against a parent (especially father) is far too easy because it does not require any evidence on the part of the accuser. Moreover, the 'benefits' of having a [FVO] issued against an opposing parent are so numerous (including access to state- and court-funded services, DV shelters, legal aid, etc) that mothers, in particular, are effectively encouraged to make up claims of DV in order to gain an advantage over their partners. In my case, my ex-wife openly boasted to her friends that she was using this strategy to get an advantage over me (I have affidavits from her now ex-friends stating this).
3.80
Conversely, some submitters pointed to the difficulty in obtaining protection orders from family violence:
I had to try twice over three years to apply for a protection order from the father. There was and still is ongoing horrid abuse, mental abuse, and emotional abuse, there was also financial and physical abuse. The Magistrates court on BOTH occasions severely warned the father that this behaviour must not continue … but at the time both granted it was not 'necessary or desirable at the time' all because there were family law proceedings, and a child involved. My safety and that of my sons was, and is not protected.
3.81
Other submitters commented on the detrimental effects that such orders can have on a parent's access to children during a separation and whilst family law proceedings are underway reflecting the view that FVOs were being obtained merely as they were seen as an advantage in family law proceedings:
Prior to separation from my wife, we had numerous verbal disputes which resulted in 3 [FVO's]against me that I did not agree with but I accepted without concessions as to not further agitate issues. At no point was there any issues relating the safety of our children etc.
I then separated from my wife … Initially [it] was [amicable] however she started reducing access to our 3 children (over a six month period including – blocking all phone call access, not allowing any overnight weekend stays, not allowing me to take then on week long holiday over Easter break that was already agreed and paid for.
3.82
However, the committee also heard that there were opposing views that FVOs did not offer any advantage in family law proceedings with one submitter highlighting concerns where both parties are forced to be in the same room prior to court or during Family Dispute Resolution, saying 'stop pushing people to be in the same room' when there are intervention orders in place.
3.83
Another submitter put forward a view that the definition and interpretation of violence should only be for physical violence:
It would appear that these [FVOs] and [Apprehended Violence Order] (AVOs) are actually not what one believes they are—Violence in these orders can be texts messages wanting to know about the child/children, lies told about the person etc. This is absolutely ridiculous. Violence in these cases [FVO] should only mean actual physical serious violence and must be proven. Many of these [FVOs] are only instigated after separation and for a purpose. There can be no evidence of any violence etc before separation.
A reluctance to raise allegations
3.84
Many victims of domestic and family violence raised concerns about not being able to make allegations in a family court setting for fear of losing parenting responsibility:
I was told by my solicitor to not bring up domestic violence as it was 1) years ago and 2) go against me so I said nothing in the beginning. It was only found through subpoenas of my medical records.
3.85
Sometimes when allegations are made, they are not believed:
While being assessed by Family Court Counsellor, I was informed that she did not have any of the fathers’ criminal records or state services records. The Counsellor found me to be a complete liar and recommended the child be sent to live with the father. An hour before the court case was to be heard, she had access to the fathers’ criminal record. She found that there was evidence of Child Sexual Abuse and Domestic Violence in his criminal history. She decided she had made a mistake and changed her mind.
3.86
Another submitter made a similar observation:
I feel under enormous pressure to constantly gather evidence that I am not being adversarial, conspiring to demonise my ex-husband and am a mentally fit parent. This is an example of a well-researched tactic used by perpetrators of family violence: I was threatened many times that I would be labelled with a mental illness if I left my ex-husband and this appears to be his current defence in court. The court perpetuates this pattern.
3.87
Some submitters described the difficulty in reporting non-physical violence, particularly for men:
I’ve observed that a man will almost never report visual, verbal and virtual violence. If they were to report [visual, virtual and verbal violence], men might feel embarrassed and full of shame. They may feel that they will be laughed out of a workplace, court or a police station … Physical violence is a lot easier to identify and rule on. However, the violence of the future, which is here to stay unless we do something about it, is … [visual, virtual and verbal violence], which doesn’t leave bruises.
False allegations
3.88
On the other hand, the committee heard that some ex-partners were making false allegations about assault and abuse as a means to influence the outcome of a family law matter. One submitter claimed that false allegations had been made against him:
After about three years, and after financial separation was completed, I had still not heard from my children, so I decided to go to court, to find out if I could get to see my children at all, in fact I really would have liked to see copies of school reports etc even, so as to know how my children were going. It was then, at the family law court, (after all these years) I found out that my ex-wife had told [Relationships Australia] that I was a violent person and they lived in fear for their lives. I was also accused of sexually abusing my children. None of this was true at all. At this point I had a breakdown, I was left in the court interview room for hours, as I was unable to move and was crying uncontrollably. The interviewer from that day seemed to have no interest in believing me whatsoever, in fact used one of my own sentences from the interview to ensure I never saw my children.
3.89
A typical example of claims relating to false allegations is outlined below:
During Family Law proceedings, numerous Family Violence allegations were levelled against me, by my ex-wife. My ex-wife also alleged that I had physically abused our son, and had sexually abused our daughter. These heinous allegations were made to gain a strategic advantage in the Family Law proceedings.
3.90
The submitter continued detailing their defence of the matter:
At significant financial, reputational and psychological cost, I defended the allegations and, on each and every occasion, they were found to be baseless and dismissed by the courts.
There is no mechanism, nor it seems was there any interest from authorities to level sanctions against those who deliberately make false statements. Paradoxically, this abuse of the system prevents resources from being deployed to those genuinely in need of these services and protection.
3.91
Some submitters and witnesses indicated that there should be more stringent consequences for those who do make false allegations.
I also believe that, where accusations are made, they need to be proven with evidence, and, in instances where they are proven to be false, charges should ensue without delay. In the event of DVOs, these need to be fully investigated and, where they are found to be false and malicious allegations, the offender should be charged with perjury to discourage those who use this as a way of getting back at the other party.
3.92
Matters relating to domestic violence will be expanded upon in Chapter 7.
Enforcement of orders
3.93
Another submitter expressed reservations about the effectiveness of orders made by a court:
I have never felt safe having a protection order on, as it hasn't ever protected me either. No punishment is ever given to the ones who break the orders, but the ones who do the right thing nothing ever goes there way. I feel so let down by the Family court/ the lawyers I used and the police. I have been abused constantly since I [have] had our son 4 years of abuse, even when I had a [Protection Order] on nothing was never done, when it expired I didn't bother to go get a new one, as I felt the system has let me down. I have put up with my ex for 4 years not complying with orders, and nothing has been done.
3.94
Generally, there was a strong view that there needed to be greater enforcement of orders in the event that they were not complied with:
I firmly believe that all orders need to be enforced, and this includes contravention and breaches of orders. I honestly believe there needs to be a 'three strikes and you're out' type of system. Too often, people are getting away with numerous breaches.
3.95
Enforcement of orders was touched on earlier in this chapter and is expanded on in Chapters 7 and 8.
Property matters
3.96
The committee heard many stories of property settlements which some parties have felt were unfair. One submitter relayed the following:
Despite being the legal owner of the family home and owning the property prior to the relationship commencing, over the next years while the property settlement was negotiated, I continued to finance the property and pay child support, whilst my former partner lived rent free.
The unencumbered family home was relinquished as part of the property settlement.
3.97
One witness brought forward a similar view:
Greedy parties can maliciously lie and can remove or steal goods and sell them-goods that are not even theirs-for their own financial gain, and then they expect more than their equal share of the home. Despite in some cases not having contributed to the purchase of the home, the mortgage, the upkeep et cetera for the entirety of the relationship, they somehow feel that they're entitled to more than 80 per cent and will not back down until they get it. The party who is given the funds is able to have a healthy deposit to start again. The person who has to pay has to sell the property and ends up with nothing.
3.98
This same witness highlighted that the perceived unfairness of decisions relating to property matters was often compounded by the perception of unfairness about issues relating to parenting responsibility:
Not only do they lose their right to their children but also they lose their right to their family home.
3.99
The interrelation of property settlements and child support matters was also raised:
[Relocation by the mother] minimizes the father's access due to the tyranny of distance. It maximizes the number of nights of child care and thus the child support payment. Once established in a new environment it is difficult to bring the children back to the neighborhood [sic] of the other parent. The initial relocation is often presented as a family holiday.
Even if the 'escaping parent' is bought back by court order this usually incurs extra costs on the other parent (and in known cases the aggrieved parent cannot afford this action). The additional costs are making the family home exclusively available and continuing to pay all running costs while being forced to reside elsewhere. And these extra costs are not counted in assessment of child support (unless a court order specifically advises they are) so the other parent is often left penniless. Even with a court order to return to the former matrimonial home the threat of future relocation is a valuable weapon. A 'returned' parent still determined on relocation does all possible actions NOT to establish social ties for the children at the current location.
3.100
The committee heard that where property settlements are completed in advance of parenting orders being finalised, this can lead to significant delays in parenting arrangements being finalised as there is little motivation for the primary carer to engage in these negotiations in good faith. In addition, some felt that access to children was also being used as a bargaining strategy during property settlement:
The financial settlement took about three years, cost tens of thousands of dollars and eventually I gave her everything including all of my superannuation, on the premise that, as she said 'I will make sure you get to see the Children'.
At the start of the financial settlement and not long after the separation I was at a loss as to why I couldn't see the children, or why they didn't want to see me. I was adviced [sic] that I had to go through relationships Australia to do mediation, to which I agreed. All I wanted to do was see my children whom I missed immensely. My ex wife missed all appointments and dragged this process out for longer than a year. In this time I had no idea what was going on and became concerned about my children. At the end of this process I was told that my children didn't want to see me and I wasn't allowed to contact them, or even in fact know where they lived or went to school. She had moved them from the school that they were in while we were together. I wasn't allowed a postal address or anything. To say I was devastated would be an understatement. I complied none the less, believing what I was told by the agency, that if I leave them alone for a while they would seek me out. I have since learnt that is the worst advice I could have ever been given, and feel that the people running that institution have an agenda (only my opinion) …
3.101
Another submitter argued that 'family law property settlements should be heavily weighted to a default 50/50 split of property and super[annuation] accrued during the marital period only' and that this is 'based on principles of fairness and natural justice'.
3.102
Others agreed with a more simplified approach as a means to move the majority of property disputes out of the family court:
If the family home or car (etc) is in one name only it remains in one name only. If the family share portfolio or investment property is in 2 names without defining percentage ownership the court must assume it is 50/50 owned and may not rule 70/30, etc. Any disagreements on who bought/owns chattels (TV's, whitegoods, etc) can be taken to Small Claims court. The Family Court will then only be needed as with judgements around separating business ventures (i.e. one party wants to sell their half of a car/house/business but the other owner does not consent).
3.103
Matters relating to property settlements are discussed further in Chapter 9.